GLENDORA WATZEK v. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION And INTERNATIONAL SYSTEMS OF AMERICA, INCORPORATED
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RENDERED: July 8, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001933-MR
GLENDORA WATZEK
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN K. MERSHON, JUDGE
ACTION NO. 03-CI-010667
KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION
And
INTERNATIONAL SYSTEMS OF AMERICA, INCORPORATED
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER AND JOHNSON, JUDGES; MILLER, SENIOR JUDGE.1
MILLER, SENIOR JUDGE:
Glendora Watzek (Watzek) brings this
appeal from an Opinion and Order of the Jefferson Circuit Court,
entered August 26, 2004, affirming the Kentucky Unemployment
Insurance Commission's (Commission) decision denying her request
for unemployment benefits.
Because we agree that substantial
evidence supports the Commission's findings and that it
correctly applied the law, we affirm.
1
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes 21.580.
Watzek was employed as a full-time sales
representative by International Systems of America, Inc.
(International) for almost ten months, from September 14, 2001,
until June 11, 2002, earning $10.54 hourly.
According to the
employee handbook, received by Watzek when she began her
employment, the hours of employment were 8:00 a.m. to 5:00 p.m.
Monday through Friday, with the employee recording the arrival
time, lunch departure and return, and end-of-the-day departure
next to his name on a sign-in sheet at the receptionist's desk.
For the employee's convenience the sign-in sheet was placed
beside an "atomic" clock that kept accurate time.
The handbook
also directed that in the event of tardiness a call to the
immediate supervisor to report same was required before the
shift began.
Failure to follow handbook policy was subject to
International's progressive disciplinary policy of a verbal
warning, written warning, and termination.
According to International, in nine months of
employment Watzek was tardy at the start of the day thirty-seven
times without prior notification to her supervisor.
While
disagreeing with the number, Watzek admitted some tardiness
without calling her supervisor and placed the cause as traffic
congestion when dropping her child off at school.
International's sign-in sheets evidenced that Watzek signed-in
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at 8:03 a.m. on January 22, 2002; at 8:01 a.m. on January 23,
2002; at 8:02 a.m. on January 24, 2002; at 8:04 a.m. on January
25, 2002; and at 8:02 a.m. on January 29, 2002.
Watzek's
tardiness was addressed with her at a monthly "focus meeting" on
January 29, 2002; she received a verbal warning on May 8, 2002,
where she was told that her job was in jeopardy; and she
received a written warning on May 28, 2002.
On June 6, 2002,
according to Watzek, as she was exiting her car she heard on the
radio that it was 8:00 a.m.
She parked four spots from the
front door, and signed-in at 8:00 a.m.
When she signed-out for
lunch the receptionist had changed it to 8:01 a.m.
On June 11,
2002, Watzek was terminated for excessive tardiness.
According to Watzek, all of her tardiness, save the
one on May 28, was due to taking her daughter to school:
[My supervisor] was aware that I have to
take my daughter to grade school over at
Ballard Elementary, and so the traffic's
just horrendous over there. Brownsboro Road
and Ballard and everything. And I never,
never knew what kind of traffic I was going
to get into so I had to. I couldn't, her
bus comes at eight o'clock so I couldn't let
her ride the bus, I had to take her over to
school. So he knew that's why, if I had ran
late, that's the reason why, I was taking my
daughter to school.
Watzek stated that the May 28 tardy occurred due to voting
before coming to work.
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On June 14, 2002, Watzek filed a claim for
unemployment insurance benefits.
On June 25, 2002, the
Department for Employment Services, Division of Unemployment
Insurance, denied Watzek's claim.
Pursuant to Kentucky Revised Statutes (KRS) 341.420,
Watzek appealed this decision, claiming that she was discharged
as a "whistle-blower."
Watzek, her supervisor, and the company
comptroller appeared at a hearing before the referee.
On August
6, 2002, the referee set aside the original determination,
concluding that International did not meet their burden of proof
as they only presented to the referee sign-in sheets for a twoweek period, while Watzek was denying the list of thirty-seven
dates of alleged unapproved tardiness compiled by International.
As such, the referee found that Watzek was discharged for
reasons other than misconduct connected with work and she was,
therefore, not disqualified from receiving benefits.
(Referee
Docket No. 02-08575 A).
International appealed this decision to the
Commission, claiming that it had only brought a "sample" of the
sign-in sheets to the hearing before the referee, and asking to
submit Watzek's sign-in sheets for her entire tenure with
International.
(Commission No. 87312A).
Pursuant to Burch v.
Taylor Drug Store, Inc., 965 S.W.2d 830 (Ky.App. 1998), the
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Commission conducted a de novo review, judging both the weight
of the evidence and the credibility of the witnesses.
On October 15, 2003, the Commission issued an order
reversing the referee, concluding that Watzek was discharged for
reasons of misconduct connected with work and assessing,
pursuant to KRS 341.330(1), $10,617.00 in repayment of benefits
paid during the disqualification period.
In so concluding, the
Commission made similar findings of fact to the referee but
reasoned that Watzek's testimony was inconsistent because
although she denied the verbal warning on May 8, 2002, she
signed acknowledgement of the written warning on May 28, 2002,
that referenced the May 8, 2002, verbal warning.
Also, Watzek's
initial application for benefits admitted the verbal warning on
May 8, 2002.
And, she initially denied receipt of the May 28,
2002, written warning until presented with the signed form.
Therefore, the Commission assigned more weight to
International's sworn testimony as consistent and credible,
establishing that Watzek was habitually tardy throughout her
employment.
Watzek, in turn, in arguing that her tardiness was
due to dropping her child at school and traffic issues, failed
to show good cause for a substantial amount of her occasions of
tardiness.
Watzek's request for reconsideration was denied on
November 17, 2003.
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Watzek appealed the Commission's decision to Jefferson
Circuit Court, which upheld the Commission.
In its Opinion and
Order, the circuit court stated as follows:
When the findings of fact of an
administrative agency are supported by
substantial evidence of probative value, the
findings are binding upon a reviewing Court.
Commonwealth of Kentucky, Department of
Education v. Commonwealth of Kentucky, 798
S.W.2d 464, 467 (Ky.App.,1990). The
evidence must have sufficient probative
value to induce conviction in the minds of
reasonable persons. Blankenship v. Lloyd
Blankenship Coal Company, 463 S.W.2d 62, 64
(Ky.,1971). A Court's first role is to
support the agency's findings when there is
substantial evidence. A Court is
responsible for review, not reinterpretation. Moreover, the reviewing
Court must determine if the administrative
agency applied the correct rule of law to
the facts as found. Thompson v. Kentucky
Unemployment Commission, 85 S.W.3d 621, 624
(Ky.App.,2002).
The Court has reviewed the record, the
Commission's findings and its order denying
Ms. Watzek's benefits. The Court accepts
the facts as reviewed and presented by the
Commission. International's presentation of
evidence of Ms. Watzek's repeated occasions
of tardiness and the previous notices given
to her regarding this problem are highly
probative on the question of whether a
denial of benefits was justified.
Contrary to Ms. Watzek's argument
against the Commission's findings on witness
credibility, the Court of Appeals has stated
that the Commission has the authority to
perform a de novo review of unemployment
case appeals, which includes judging the
weight of evidence and witness credibility.
Burch v. Taylor Drug Store, 965 S.W.2d 830
(Ky.App.,1998). Under oath Ms. Watzek
denied having discussions of her tardiness
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with her manager. However, International
submitted evidence showing a written warning
that referenced a May 8, 2002, discussion
with Ms. Watzek's manager on this issue.
This written warning was signed and
acknowledged by Ms. Watzek on May 28, 2002.
Additionally, in her initial application for
unemployment benefits, Ms. Watzek
acknowledged receiving a notice regarding
her tardiness on May 8th. The Commission
found that "her statements are clearly
contradictory' in comparison to
International's testimony "[which] remained
consistent throughout the hearing and is
therefore more credible. As a result, the
Commission assigns more weight to the
employer's sworn testimony." (Commission's
Order Reversing, October 15, 2003, p.2). In
light of all of this information, this Court
holds that the Commission appropriately
weighed the facts and based its findings
upon substantial evidence.
This Court also holds that the
Commission correctly applied the appropriate
law to the facts as found. The relevant
statute is KRS 341.370(6) which reads in
pertinent part "'Discharge for misconduct'
as used in this section shall include . . .
unsatisfactory attendance if the worker
cannot show good cause for absences and
tardiness". Under this statute, Ms. Watzek
has the burden of rebutting the presented
evidence and showing good cause for her
alleged misconduct. Ms. Watzek states her
"good cause" is that she encountered heavy
traffic along the roadways after taking her
child to school. This Court agrees with the
finding of the Commission that Ms. Watzek
"bore a higher responsibility to arrange her
schedule and arrive at work on time to
preserve her job." (Commission's Order
Reversing, October 15, 2003, p.3) The
Commission seems to have given fair weight
to Ms. Watzek's circumstances, but
unfortunately, they simply do not rise to
the level of "good cause" as required under
the statute.
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The Commission supported its decision
with substantial evidence of probative value
and correctly applied the law.
This appeal follows.
Before us, Watzek argues that the findings of fact
made by the Commission are not supported by substantial
evidence; that the Commission did not apply the correct rule of
law; and that the Commission's reasons for disqualification of
Watzek's testimony due to inconsistency are misplaced.
Kentucky's unemployment compensation system's sole
function is to determine whether the affected employee meets the
statutory criteria to qualify for benefits, not to inquire or
make any judgments about the reasons behind an employee's
termination.
Board of Education of Covington v. Gray, 806
S.W.2d 400, 402 (Ky.App. 1991).
The legislative purpose in
enacting the unemployment compensation act was "to provide
benefits for only those employees who have been forced to leave
their employment because of forces beyond their control and not
because of any voluntary act of their own."
Kentucky
Unemployment Insurance Commission v. Kroehler Manufacturing
Company, 352 S.W.2d 212, 214 (Ky. 1961).
The employer has the
burden of proving that the employee's actions constituted
misconduct.
Burch, supra at 835.
If there is substantial
evidence in the record to support an agency's findings, they are
not clearly erroneous or arbitrary and will be upheld even
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though there may be conflicting evidence in the record.
Kentucky Commission on Human Rights v. Fraser, 625 S.W.2d 852,
856 (Ky. 1981).
"The fact that a reviewing court may not have
come to the same conclusion regarding the same findings of fact
does not warrant substitution of a court's discretion for that
of an administrative agency."
Kentucky Unemployment Insurance
Commission v. Landmark Community Newspapers of Kentucky, Inc.,
91 S.W.3d 575, 582 (Ky. 2002).
The fundamental question before us, therefore, is
whether the facts found by the Commission are "supported by
substantial evidence" [Kentucky Unemployment Insurance
Commission v. Springer, 437 S.W.2d 501, 502 (Ky. 1969)], and, if
so, whether the Commission "incorrectly applied the correct rule
of law to the facts presented to it" [Kentucky Unemployment
Insurance Commission v. Stirrat, 688 S.W.2d 750, 751-52 (Ky.App.
1984)]," or, stated another way, the applicable standard of
review is as follows:
Judicial review of the acts of an
administrative agency is concerned with the
question of arbitrariness. The findings of
fact of an administrative agency which are
supported by substantial evidence of
probative value must be accepted as binding
by the reviewing court. The court may not
substitute its opinion as to the weight of
the evidence given by the Commission. Upon
determining that the Commission's findings
were supported by substantial evidence, the
court's review is then limited to
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determining whether the Commission applied
the correct rule of law.
Burch, supra at 834 (citations omitted).
Herein, the Commission made factual findings that 1)
International had an attendance policy requiring employees to
report any occasion of tardiness prior to the beginning of the
shift and violation of this policy through excessive tardiness
subjected the employee to discipline up to and including
discharge; 2) Watzek was aware of this policy; 3) Watzek was
tardy to work on numerous occasions throughout her employment;
4) Watzek's tardiness was brought to her attention verbally on
January 29, 2002, and May 8, 2002; and in writing on May 28,
2002; 5) Watzek was late on June 6, 2002; and 6) Watzek was
terminated on June 11, 2002, for excessive tardiness.
As the reviewing court, we must accept these findings
as correct if supported by substantial evidence, defined as:
[E]vidence, taken alone or in light of all
the evidence, that has sufficient probative
value to induce conviction in the minds of
reasonable people. If there is substantial
evidence to support the agency's findings, a
court must defer to that finding even though
there is evidence to the contrary.
Thompson v. Kentucky Unemployment Insurance Commission, 85
S.W.3d 621, 624 (Ky.App. 2002)(citations omitted).
Although
Watzek's testimony before the referee provides conflicting
evidence in the record, we conclude that the facts as found by
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the Commission are supported by substantial evidence and as such
are not arbitrary or clearly erroneous.
Having determined that the Commission's findings are
supported by substantial evidence, we next review as to whether
the Commission applied the correct rule of law.
Our decision in
the present case turns on the application of KRS 341.370, which
provides in relevant part:
(1) A worker shall be disqualified from
receiving benefits for the duration of any
period of unemployment with respect to
which:
* * *
(b) He has been discharged for misconduct or
dishonesty connected with his most recent
work, . . .
KRS 341.370(6) defines "discharge for misconduct" as including,
but not limited to, "unsatisfactory attendance if the worker
cannot show good cause for absences or tardiness."
Although the
employer bears the burden of establishing misconduct (See
Shamrock Coal Company, Inc. v. Taylor, 697 S.W.2d 952, 954
(Ky.App. 1985)), the employee has the overall burden of proof
and persuasion to show good cause for the absences or tardiness.
Upon the record as a whole, it does not compel a finding in her
favor.
Herein, Watzek argues that she established "good
cause" for her tardiness by being subjected to a situation over
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which she had very little control – traffic in the dropping off
of her child at school.
We disagree.
"When all else is said and done, common sense must not
be a stranger in the house of the law.... 'Good cause usually is
regarded as a reason sufficient in ordinary circumstances of an
urgent and personal nature to justify leaving employment; ....'
In re Lauria's Claim, 18 A.D.2d 848, 236 N.Y.S.2d 168
(Sup.Ct.App.Div.1963)."
Cantrell v. Kentucky Unemployment
Insurance Commission, 450 S.W.2d 235, 237 (Ky. 1970).
In order
to be ineligible for unemployment benefits, a fired worker's
conduct must evince some bad faith or give rise to an inference
of culpability in the form of willful or wanton conduct.
See
generally Shamrock Coal, supra.
International provided documentary and testimonial
evidence that Watzek knew of the policy; was informed of the
problem with tardiness; and still failed to follow her
employer's reasonable policy of notifying her supervisor, before
shift, when she was going to be tardy.
In Cantrell, supra, the
court held that a woman who took time off from work to care for
her extremely sick husband until he died did not leave her job
voluntarily without good cause, and when she was replaced she
was entitled to unemployment benefits.
Cantrell is different
from herein, however, in that the employee therein made the
effort to notify her employer on a daily basis of the continuing
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circumstances that made her absence a reasonable necessity.
There is no such evidence herein.
Watzek's willful and wanton
disregard of International's policies relative to tardiness
constituted misconduct as defined in KRS 341.370(6).
See
generally Broadway and Fourth Avenue Realty Company v. Crabtree,
365 S.W.2d 313, 314 (Ky. 1963); and Brown Hotel Co. v. White,
365 S.W.2d 306, 307 (Ky. 1963) for the principle that excessive
absenteeism, coupled with the failure to give notice to the
employer, constituted misconduct.
Lastly, we find no merit in Watzek's argument that the
Commission failed to have a sound reason for disbelieving her.
Watzek contends that her inconsistency in the recall of dates is
not a credibility issue but a memory issue.
As conceded by
Watzek, the Commission has the authority to judge both the
weight of the evidence and the credibility of the witnesses.
Burch, supra.
We decline, therefore, to disturb the
Commission's findings.
Regardless of whether we would have held the same, we
are not permitted to substitute our judgment for the
Commission's.
Our review is limited to the question of whether
the Commission misapplied the statute, and we cannot say that it
did.
We therefore conclude that the Commission properly applied
the law to the facts in this case in determining that Watzek was
not eligible to collect unemployment benefits due to her
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misconduct, and the circuit court was correct in affirming that
decision.
For the foregoing reasons, the opinion and order of
the Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
Stephen C. Emery
Louisville, Kentucky
BRIEF FOR APPELLEE KENTUCKY
UNEMPLOYMENT INSURANCE
COMMISSION:
E. Jeffrey Mosley
Frankfort, Kentucky
No brief for Appellee
International Systems of
America, Inc.
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